6 Par exemple: New South Wales Commercial Arbitration Act, 2010, 27C Consolidation of arbitral proceedings: (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may apply to the arbitral tribunal for an order under this section in relation to those proceedings and other arbitral proceedings (whether before that tribunal or another tribunal or other tribunals) on the ground that (a) a common question of law or fact arises in all those proceedings; or (b) the rights to relief claimed in all those proceedings are in respect of, or arise out of, the same transaction or series of transactions; or (c) for some other reason specified in the application, it is desirable that an order be made under this section. (2) In this section, 2 or more arbitral proceedings that are the subject of an application under subsection (1) are called the related proceedings. (3) The following orders may be made under this section in relation to the related proceedings: (a) that the proceedings be consolidated on terms specified in the order; (b) that the proceedings be heard at the same time or in a sequence specified in the order; (c) that any of the proceedings be stayed pending the determination of any of the other proceedings. (4) If all the related proceedings are being conducted by the same tribunal, the tribunal may make any order under this section that it thinks fit in relation to those proceedings and, if an order is made, the proceedings must be dealt with in accordance with the order. (5) If 2 or more arbitral tribunals are conducting the related proceedings (a) the tribunal that received the application must communicate the substance of the application to the other tribunals concerned; and (b) the tribunals must, as soon as practicable, deliberate jointly on the application. (6) If the tribunals agree, after deliberation on the application, that a particular order under this section should be made in relation to the related proceedings (a) the tribunals are to jointly make the order; and (b) the related proceedings are to be dealt with in accordance with the order; and A/CN.9/WG.II/WP.108, 6-10 (2000); Note of the Secretariat on the Possible Future Work in the Area of International Commercial Arbitration, U.N. Doc. A/CN.9/460, XXX UNCITRAL Y.B. 395, (1999); Report of the UNCITRAL on the Work of Its Thirty-Second Session, U.N. Doc. A/54/17, XXX Y.B. UNCITRAL 3, (1999)). 6

7 (c) if the order is that the related proceedings be consolidated the arbitrator or arbitrators for the purposes of the consolidated proceedings are to be appointed, in accordance with sections 10 and 11, from the members of the tribunals. (7) If the tribunals are unable to make an order under subsection (6), the related proceedings are to proceed as if no application has been made under subregulation (1). (8) Before making an order under this section, the arbitral tribunal or tribunals concerned must take into account whether any party would or might suffer substantial hardship if the order were made. (9) This section does not prevent the parties to related proceedings from agreeing to consolidate them and taking such steps as are necessary to effect that consolidation. Note There is no equivalent to this section in the Model Law. La majorité des législations étrangères abordant la question de la consolidation des procédures arbitrales se contente néanmoins de prévoir la possibilité pour un tribunal arbitral de procéder à la jonction de procédures uniquement dans le strict respect du consentement des parties, qui peut être donné expressément ou tacitement. Par exemple : Arbitration Act of England Section Consolidation of proceedings and concurrent hearings. (1) The parties are free to agree - (a) that the arbitral proceedings shall be consolidated with other arbitral proceedings, or (b) that concurrent hearings shall be held, on such terms as may be agreed. (2) Unless the parties agree to confer such power on the tribunal, the tribunal has no power to order consolidation of proceedings or concurrent hearings. Irish Arbitration Act, 2010, 16 Consolidation of and concurrent arbitration: (1) Where the parties to an arbitration agreement so agree (a) arbitral proceedings shall be consolidated with other arbitral proceedings, including arbitral proceedings involving a different party or parties with the agreement of that party or parties, (b) concurrent hearings shall be held, on such terms as may be agreed between the parties concerned. (2) The arbitral tribunal shall not order the consolidation of proceedings or concurrent hearings unless the parties agree to the making of such an order. 7

8 Scottish Arbitration Act, 2010, Schedule 1, Rule 40 Consolidation of proceedings D: (1)Parties may agree (a)to consolidate the arbitration with another arbitration, or (b)to hold concurrent hearings. (2)But the tribunal may not order such consolidation, or the holding of concurrent hearings, on its own initiative. Malaysian Arbitration Act, 2005, Part III additional provisions relating to arbitration art. 40 Consolidation of proceedings and concurrent hearings: (1) The parties may agree - (a) that the arbitration proceedings shall be consolidated with other arbitration proceedings; or (b) that concurrent hearings shall be held, On such terms as may be agreed. (2) Unless the parties agree to confer such power on the arbitral tribunal, the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings. Seules quelques législations autorisent un tribunal arbitral ou un juge national à prononcer la consolidation, la jonction ou accepter l intervention de tierces parties, lorsque la convention d arbitrage n exclut pas cette possibilité. Ces dispositions législatives ne sont cependant pas impératives mais supplétives de volonté. Par exemple : Le Code de procédure civile néerlandais : Consolidation, art du Code de procédure civile : 1. If arbitral proceedings have been commenced before an arbitral tribunal in the Netherlands concerning a subject matter which is connected with the subject matter of arbitral proceedings commenced before another arbitral tribunal in the Netherlands, any of the parties may, unless the parties have agreed otherwise, request the President of the District Court in Amsterdam to order a consolidation of the proceedings. 2. The President may wholly or partially grant or refuse the request, after he has given all parties and the arbitrators an opportunity to be heard. His decision shall be communicated in writing to all parties and the arbitral tribunals involved. 3. If the President orders consolidation in full, the parties shall in consultation with each other appoint one arbitrator or an uneven number of arbitrators and determine the procedural rules which shall apply to the consolidated proceedings. If, within the period of time prescribed by the President, the parties have not reached agreement on the above, the President shall, at the request of any of the parties, appoint the arbitrator or arbitrators and, if necessary, determine the procedural rules which shall apply to the consolidated proceedings. The President shall determine the remuneration for the work 8

9 already carried out by the arbitrators whose mandate is terminated by reason of the full consolidation. 4. If the President orders partial consolidation, he shall decide which disputes shall be consolidated. The President shall, if the parties fail to agree within the period of time prescribed by him, at the request of any of the parties, appoint the arbitrator or arbitrators and determine which rules shall apply to the consolidated proceedings. In this event the arbitral tribunals before which arbitrations have already been commenced shall suspend those arbitrations. The award of the arbitral tribunal appointed for the consolidated arbitration shall be communicated in writing to the other arbitral tribunals involved. Upon receipt of this award, these arbitral tribunals shall continue the arbitrations commenced before them and decide in accordance with the award rendered in the consolidated proceedings. 5. The provisions of article 1027(4) shall apply accordingly in the cases mentioned in paragraphs (3) and (4) above. 6. An award rendered under paragraphs (3) and (4) above shall be subject to appeal to a second arbitral tribunal if and to the extent that all parties involved in the consolidated proceedings have agreed upon such an appeal. La consolidation n est possible qu en l absence d une exclusion tacite ou expresse des parties et à la libre appréciation du président du tribunal du district d Amsterdam qui déterminera son bien-fondé au regard de plusieurs autres éléments tels que l économie procédurale, l intention des parties 13, etc. Intervention et jonction avec une partie tierce, art du Code de procédure civile : 1. At the written request of a third party who has an interest in the outcome of the arbitral proceedings, the arbitral tribunal may permit such party to join the proceedings, or to intervene therein. The arbitral tribunal shall send without delay a copy of the request to the parties. 2. A party who claims to be indemnified by a third party may serve a notice of joinder on such a party. A copy of the notice shall be sent without delay to the arbitral tribunal and the other party. 3. The joinder, intervention or joinder for the claim of indemnity may only be permitted by the arbitral tribunal, having heard the parties, if the third party accedes by agreement in writing between him and the parties to the arbitration agreement. 4. On the grant of a request for joinder, intervention, or joinder for the claim of indemnity, the third party becomes a party to the arbitral proceedings. Unless the parties have agreed there on the arbitral tribunal shall determine the further conduct of the proceedings. En présence d une demande d intervention volontaire, la partie tierce dépose une requête à l attention du tribunal arbitral, à charge pour ce dernier de communiquer la requête aux parties qui pourront alors débattre contradictoirement de l opportunité d accepter une telle demande. 13 Judgment of 23 July 2003, 2004: 65 TvA 171 (Amsterdam Rechtbank), Commentaire de van Haersolte (parties impliedly excluded consolidation), in Multiple Party Actions in International Arbitration, ed Macmahon, Permanent Court of Arbitration, 2009,

10 En présence d une demande d intervention forcée, la demande d intervention formulée par l une des parties à l instance sera communiquée à la tierce partie et au tribunal arbitral. Dans ces deux cas, et contrairement à une demande de consolidation de deux procédures pendantes, la tierce partie ne pourra se voir contrainte à rejoindre la procédure d arbitrage sans son consentement. Cette acceptation devra faire l objet d un avenant formulé par écrit à la clause d arbitrage initiale. New Zealand Arbitration Act, 1996, Schedule 2 on additional optional rules applying to arbitration - art. 2 Consolidation of arbitral proceedings (1) Where arbitral proceedings all have the same arbitral tribunal, (a) the arbitral tribunal may, on the application of at least 1 party in each of the arbitral proceedings, order (i) those proceedings to be consolidated on such terms as the arbitral tribunal thinks just; or (ii) those proceedings to be heard at the same time, or one immediately after the other; or (iii) any of those proceedings to be stayed until after the determination of any other of them: (b) if an application has been made to the arbitral tribunal under paragraph (a) and the arbitral tribunal refuses or fails to make an order under that paragraph, the High Court may, on application by a party in any of the proceedings, make any such order as could have been made by the arbitral tribunal. (2) Where arbitral proceedings do not all have the same arbitral tribunal, (a) the arbitral tribunal for any one of the arbitral proceedings may, on the application of a party in the proceedings, provisionally order (i) the proceedings to be consolidated with other arbitral proceedings on such terms as the arbitral tribunal thinks just; or (ii) the proceedings to be heard at the same time as other arbitral proceedings, or one immediately after the other; or (iii) any of those proceedings to be stayed until after the determination of any other of them: (b) an order ceases to be provisional when consistent provisional orders have been made for all of the arbitral proceedings concerned: (c) the arbitral tribunals may communicate with each other for the purpose of conferring on the desirability of making orders under this subclause and of deciding on the terms of any such order: (d) if a provisional order is made for at least one of the arbitral proceedings concerned, but the arbitral tribunal for another of the proceedings refuses or fails to make such an order (having received an application from a party to make such an order), the High Court may, on application by a party in any of the proceedings, make an order or orders that could have been made under this subclause: (e) if inconsistent provisional orders are made for the arbitral proceedings, the High Court may, on application by a party in any of the proceedings, alter the orders to make them consistent. 10

11 (3) When arbitral proceedings are to be consolidated under subclause (2), the arbitral tribunal for the consolidated proceedings shall be that agreed on for the purpose by all the parties to the individual proceedings, but, failing such an agreement, the High Court may appoint an arbitral tribunal for the consolidated proceedings. (4) An order or a provisional order may not be made under this clause unless it appears (a) that some common question of law or fact arises in all of the arbitral proceedings; or (b) that the rights to relief claimed in all of the proceedings are in respect of, or arise out of, the same transaction or series of transactions; or (c) that for some other reason it is desirable to make the order or provisional order. (5) Any proceedings before an arbitral tribunal for the purposes of this clause shall be treated as part of the arbitral proceedings concerned. (6) Arbitral proceedings may be commenced or continued, although an application to consolidate them is pending under subclause (1) or (2) and although a provisional order has been made in relation to them under subclause (2). (7) Subclauses (1) and (2) apply in relation to arbitral proceedings whether or not all or any of the parties are common to some or all of the proceedings. (8) There shall be no appeal from any decision of the High Court under this clause. (9) Nothing in this clause prevents the parties to 2 or more arbitral proceedings from agreeing to consolidate those proceedings and taking such steps as are necessary to effect that consolidation. Il est également possible de citer les législations de certains Etats australiens, telles que le New South Wales Commercial Arbitration Act, 2010, art. 27(C) 14, repris dans les mêmes termes par le South Australia Commercial Act, 2011, 27 (C) et the Victoria Commercial Arbitration Act, 2011, art. 27(C). Aux Etats-Unis, certaines législations prévoient la possibilité pour un juge de prononcer la consolidation de procédures arbitrales dans certaines conditions spécifiques. A titre d exemple, peut être cité l article du Code de procédure civile californien Voir supra. 15 A party to an arbitration agreement may petition the court to consolidate separate arbitration proceedings, and the court may order consolidation of separate arbitration proceedings when: (1) Separate arbitration agreements or proceedings exist between the parties; or one party is a party to a separate arbitration agreement or proceeding with a third party; and (2) The disputes arise from the same transactions or series of related transactions; and (3) There is common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators. 11

16 Le Règlement LCIA a également fait l objet d une révision au cours de laquelle de nouveaux «Additional Powers of the Arbitral Tribunal» ont été ajoutés à la liste prévue par l article 22 du Règlement. Article 22.1.h du Règlement LCIA (1998) : Unless the parties at any time agree otherwise in writing, the Arbitral Tribunal shall have the power, on the application of any party or of its own motion, but in either case only after giving the parties a reasonable opportunity to state their views: [ ] (h) to allow, only upon the application of a party, one or more third persons to be joined in the arbitration as a party provided any such third person and the applicant party have consented thereto in writing, and thereafter to make a single final award, or separate awards, in respect of all parties so implicated in the arbitration. Article (viii) à (xi) du Règlement LCIA (1998) : 22.1 The Arbitral Tribunal shall have the power, upon the application of any party or (save for sub-paragraphs (viii), (ix) and (x) below) upon its own initiative, but in either case only after giving the parties a reasonable opportunity to state their views and upon such terms (as to costs and otherwise) as the Arbitral Tribunal may decide: [ ] (viii) to allow one or more third persons to be joined in the arbitration as a party provided any such third person and the applicant party have consented to such joinder in writing following the Commencement Date or (if earlier) in the Arbitration Agreement; and thereafter to make a single final award, or separate awards, in respect of all parties so implicated in the arbitration; (ix) to order, with the approval of the LCIA Court, the consolidation of the arbitration with one or more other arbitrations into a single arbitration subject to the LCIA Rules where all the parties to the arbitrations to be consolidated so agree in writing; (x) to order, with the approval of the LCIA Court, the consolidation of the arbitration with one or more other arbitrations subject to the LCIA Rules commenced under the same arbitration agreement or any compatible arbitration agreement(s) between the same disputing parties, provided that no arbitral tribunal has yet been formed by the LCIA Court for such other arbitration(s) or, if already formed, that such tribunal(s) is(are) composed of the same arbitrators; and (xi) to order the discontinuance of the arbitration if it appears to the Arbitral Tribunal that the arbitration has been abandoned by the parties or all claims and any cross-claims withdrawn by the parties, provided that, after fixing a reasonable period of time within which the parties shall be invited to agree or to object to such discontinuance, no party has stated its written objection to the Arbitral Tribunal to such discontinuance upon the expiry of such period of time. 16

17 Hong Kong International arbitration Centre (HKIAC) 2013 Rules art. 28 Consolidation of Arbitrations : 28.1 HKIAC shall have the power, at the request of a party (the Request for Consolidation ) and after consulting with the parties and any confirmed arbitrators, to consolidate two or more arbitrations pending under these Rules where: (a) the parties agree to consolidate; or (b) all of the claims in the arbitrations are made under the same arbitration agreement; or (c) the claims are made under more than one arbitration agreement, a common question of law or fact arises in both or all of the arbitrations, the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, and HKIAC finds the arbitration agreements to be compatible The party making the request shall provide copies of the Request for Consolidation to all other parties and to any confirmed arbitrators In deciding whether to consolidate, HKIAC shall take into account the circumstances of the case. Relevant factors may include, but are not limited to, whether one or more arbitrators have been designated or confirmed in more than one of the arbitrations, and if so, whether the same or different arbitrators have been confirmed Where HKIAC decides to consolidate two or more arbitrations, the arbitrations shall be consolidated into the arbitration that commenced first, unless all parties agree or HKIAC decides otherwise taking into account the circumstances of the case. HKIAC shall provide copies of such decision to all parties and to any confirmed arbitrators in all arbitrations The consolidation of two or more arbitrations is without prejudice to the validity of any act done or order made by a court in support of the relevant arbitration before it was consolidated Where HKIAC decides to consolidate two or more arbitrations, the parties to all such arbitrations shall be deemed to have waived their right to designate an arbitrator, and HKIAC may revoke the appointment of any arbitrators already designated or confirmed. In these circumstances, HKIAC shall appoint the arbitral tribunal in respect of the consolidated proceedings The revocation of the appointment of an arbitrator under Article 28.6 is without prejudice to: (a) the validity of any act done or order made by that arbitrator before his or her appointment was revoked; (b) his or her entitlement to be paid his or her fees and expenses subject to Schedule 2 or 3 as applicable; and 17

18 (c) the date when any claim or defence was raised for the purpose of applying any limitation bar or any similar rule or provision The parties waive any objection, on the basis of HKIAC's decision to consolidate, to the validity and/or enforcement of any award made by the arbitral tribunal in the consolidated proceedings, in so far as such waiver can validly be made HKIAC may adjust its Administrative Fees and the arbitral tribunal's fees (where appropriate) after a Request for Consolidation has been submitted. 18

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